Windex, White Out And Osha Regulation Of Small Businesses

Windex, WhiteOut and OSHA Regulation of Small Businesses

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The Occupational Safety and Health Administration (OSHA) in 1983 issued a Hazard Communication Standard (29 CFR 1900.1200), now commonly referred to as HAZCOM, to cover the use of chemicals and hazardous substances by manufacturers. In 1987 the standard was broadened to include all employers, not just manufacturers. The standard thus provides guidelines and procedures both for companies producing chemicals and for businesses using those products, whether in the manufacturing sector or elsewhere.

HAZCOM requires that chemical manufacturers provide Material Safety Data Sheets (MSDSs) for each product, along with labels on the containers, listing the contents and any dangers associated with them. In turn, a company using these chemicals must make the MSDSs for the products available to relevant employees and also conduct training for the products safe use. Each company must in addition develop a written hazard communication policy that covers MSDS filing and access, clear labeling of product containers, and training on not just use of the products but also on emergency procedures. So far, this description might conjure images of huge bustling plants with smoke flying every which way, or of office environments where scores of employees hustle back and forth with massive computer banks and photocopy equipment running nonstop. However, HAZCOM extends even to offices of any size that use commercial, even store-bought, products simply to maintain a clean work environment. Not only is OSHA concerned about such small-office hazards, but the U.S. Consumer Product Safety Code (15 U.S.C. 2051 Sec. 2) has found that an unacceptable number of consumer products which present unreasonable risks of injury are distributed in commerce.” Whether your business manufactures chemicals, works with importers of hazardous materials, or simply maintains a clean office environment through the use of household chemicals, the basic goal of HAZCOM is to ensure that employers and employees know about chemical hazards and how to protect themselves. This knowledge, in turn, should help to reduce the incidence of chemical illnesses and injuries. Although the risk of exposure varies with every business, the best line of defense against illnesses and injuries and potential fines for noncompliance is a written Hazard Communication Program. What of those two- or three-person offices where the only things resembling chemicals might be Windex, White-Out and Simple Green? Would the owner/manager have to provide MSDSs and training and develop a written hazard communication program? Yes and no, but at minimum a written safety-and-emergency program is always a good idea. Basically, OSHA employs a consumer use standard when it comes to everyday chemical products being used in a work environment. If in the course of daily business, the products arent used anymore than a consumer would use them at home, then they can be considered exempt from the Hazard Communication Standard. That would probably cover an awful lot of small office situations, but its still a fairly grey area open to interpretation. In the current Labor Department environment, which emphasizes stringent enforcement of all standards and heavier fines for both repeat and first-time violators, its probably not a good idea to hide behind grey areas. Dr. David Michaels, the undersecretary who oversees OSHA, has been loudly and proudly proclaiming a new era of enforcement and is seeking to increase the fines the agency can levy through a measure entitled Protecting Americas Workers Act (PAWA). Even if PAWA does not pass Congress, OSHA already has bumped up its fines from the low end to the middle of the allowable spectrum. For instance, if in the past a violator could be fined up to $7,000, normally a fine might be issued at $1,000, if at all. Now that amount has been escalated to as much as $4,000, but so far this harsher penalty seems to be reserved for repeatand severe-violators. Also, OSHA is now much more reliant on its General Duty Clauseand much more flexible in interpreting it. Section 5(a)(1) of the 1970 enabling OSH Act, often referred to as the General Duty Clause, requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Section 5(a)(2) requires employers to “comply with occupational safety and health standards promulgated under this Act. In essence, if OSHA inspectors can find no published standard by which to fine or force a company into compliance, they can fall back on the General Duty Clause. Though its highly unlikely they would ever declare Windex a hazard likely to cause death or serious physical harm, they could ask for your hazard communication policy and/or your emergency action plan. If you lacked one, you could well be fined or at least ordered to produce one for inspection sometime in the near future. High on OSHAs list for new regulatory standards are hexavalent chromium (used in paints and pigments), combustible dust (often created in the production of everyday items such as sugar, paper, soap and wood products), and finally la piece de CofC resistance, workplace ergonomics. OSHA had a go at an ergonomics standard previously, but it was rescinded by the Bush administration under pressure from the Chamber of Commerce (CofC) and other business interests. Now it appears that Dr. Michaels will employ the General Duty Clause to regulate workplace ergonomics. For certain, beginning in January 2011, the OSH Form 300 Log of Work-Related Injuries and Illnesses will feature a new ergonomics reporting column, from which statistics will be created and regulations and standards potentially devised. Note, however, that only firms with 10 or more employees must keep this log, and even then many low-hazard industries, including retail, real estate, insurance and most small storefront and office operations, are exempt. So far. Things can change quickly. Some states have adopted even stricter standards than those of Federal OSHA. California comes readily to mind. In all, 24 states, Puerto Rico and the Virgin Islands have OSHA-approved State Plans and have adopted their own standards and enforcement policies. For the most part, these states adopt standards that are identical to Federal OSHA. However, some states have embraced different standards or different enforcement policies. You need to check on applicable standards and regulations if you live in one of those states. In summary, though White-Out and Windex probably arent worthy of filing MSDSs on them, as a business owner or operator, you should realize you have a general duty to keep a safe workplace with contingency and emergency plans in place for all eventualities. All it takes is one less-than-gruntled employee or devious competitor to file a complaint with OSHA, and you could find yourself on the visitation list. And remember, the hazard communication standard historically has been the frequently cited OSHA violation.

Gary McCarty is a researcher, writer and Web editor for Personnel Concepts in Ontario, CA, the nation’s premier provider of labor law posters and labor law and OSHA compliance kits.

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